Speech acts and criminal acts

It is not my intent that this weblog should be a commentary on current events. There are many other weblogs that present such commentary, more thorough and well-informed than anything I can offer. But I cannot stop thinking about the recently released memos on torture, and what they might mean for the future of this country. In keeping with the previous post, I begin with some answers to questions, this time by President Bush. The occasion is the press conference given by the President at the end of the G8 Summit (International Media Center, Savannah, Georgia).
Q Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander-in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?
THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.
A bit later:
Q Returning to the question of torture, if you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?
THE PRESIDENT: Jonathan, what I've authorized is that we stay within U.S. law.
Once more:
Q Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?
THE PRESIDENT: Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government.
Bush twice avoids offering an opinion on the morality of torture. He does say that he “authorized” that anything done would “conform to US law” and be “consistent” with treaty obligations. No doubt that response was worked out in advance. One could take it to mean “Here are the boundaries: stay within them”. But if it were accompanied by the advice below, the message would instead be something like “Here are all the avenues by which to escape any penalty for torture”. Perhaps that is why Bush, in answering the last question, simply repeated his lines. The memo-writers did look at the law; that’s the point: they, and presumably the administration, regarded the law as a mere hindrance (or as no hindrance at all, since the memo gives the President the power to make law).
The second questioner gives a version of the hackneyed “madman with a time-bomb”. In my view the use of such examples in discussions of torture is pernicious. Their argumentative function is to extract from the opponent some intuition to the effect that in this dire circumstance, such-and-such an act amounting to torture would be permissible. Their rhetorical function is to present a specious dilemma: either you permit torture under certain circumstances or, by forbidding it in all circumstances, allow terrible things to happen. In short: torture or September 11th.
Mere Dicta has an excellent concise response. Were the mad-bomber situation to arise, an agent who resorted to torture to save thousands of lives could be exonerated by mounting a “necessity” defense. (The memos cited below effectively try to make the threat of attack by Al-Qaeda a circumstance of necessity. That argument is inapplicable, of course, to the prisoners in Iraq; it is also inapplicable to most if not all of the prisoners at Guantanamo, a fifth of whom may have been turned in for bounty money. It is a violation of the Fifth Geneva Convention not to have a procedure for determining who is really an enemy or illegal combatant and who isn’t.)
The overwhelming majority of instances of torture, on the other hand, have occurred in circumstances in which there is no necessity. The mad-bomber situation is irrelevant. The use of torture is a kind of rot that, once introduced into a political system, tends to spread and to corrupt everything it touches (I think here of Zimbardo’s famous “prison experiment”). A few 20th-century examples will suffice: French in Algeria (and Algeria now), the “dirty war” in Argentina, the US military in South Vietnam (and the North Vietnamese too).
The difference between holding that torture is always wrong but sometimes excusable (thus justifying a not-guilty verdict on the basis of something like the necessity defense) and that torture is sometimes not wrong but rather permissible in some cases (or obligatory if you accept certain utilitarian arguments) is this. Under the first, the person who commits torture still regards the act, considered in itself, as wrong, and would be justified in regretting it; but finds themselves compelled, given the immense harm that was to be prevented and the absence of any feasible alternative, to perform the act (compare the quotation from Lincoln at Balkinization: the suspension of habeas corpus is a regrettable necessity in Lincoln’s view; it is not, however, up to the President but the people to decide if the President’s act is justified).
Under the second, on the other hand, the act per se is permitted or obligatory and thus the agent would be justified in feeling satisfied in having done their duty, or at least not violated it. There are, it seems to me, many reasons to prefer that those in positions of power should adopt—sincerely—the first attitude, starting with Lord Acton’s dictum that power corrupts, which, even if it is not true in general, is only too often true of jailers and interrogators.
An analogy: some theological thinkers, among them Leibniz, acknowledged the necessity for divine punishment in the next world of wrongdoers in this world; they emphasized the antecedent volition of God that all souls should be saved, and did their best to minimize the penalties required by justice. Leibniz went so far as to argue in some of his later writings (the Apokatastasis in particular) that all creatures would eventually be perfected and that there would be no eternal damnation. Others, like Tertullian, far from regretting the necessity of punishment, relished the thought, and imagined the blessed in heaven looking down with pleasure at the tortures of the damned (De spectaculis c.30 (French, English), quoted in part by Nietzsche Genealogie der Moral 1c15, Kritische Studienausgabe 5:284–285).
The latest memo to become public was first published by the Wall Street Journal (it can also be found at MSNBC; for earlier memos on torture, see Michael Hirsh, John Barry and Daniel Klaidman, “A tortured debate”, Newsweek, and summary pages at Body and Soul and Sisyphus Shrugged). The memos offer advice; it is possible that the advice was rejected. But there are indications that instructions about interrogation came from a good ways up the chain of command—from the people who asked for that advice—, and that they were consistent with that advice.
The memos lay out several lines of defense, notably:
  • Narrowing the definition of ‘torture’
  • Excluding the prisoners at Guantanamo (and perhaps also in other locations: there are lots of them) from the protection of the Geneva Convention and relevant American law
  • Invoking the “Nuremberg defense” (“superior orders”: pp32–33)
  • Appealing to “necessity” or to self-defense (not only of oneself, but of the US; pp25–29)
  • Appealing to the “inherent power” of the President in his capacity as commander-in-chief (pp19–24)
The advice is clearly intended to give as much latitude as possible to interrogators, to their superiors, and to the President himself. If all else fails, those who followed the advice can always blame their advisors. We have already seen this in the case of the false claims made by Powell and Bush concerning nuclear, biological, and chemical weapons in Iraq.
Moral clarity, indeed.
Some references
In addition to the links above, I have found these informative:
Billmon’s Whiskey Bar, especially“Presidential Powers”.
Joe’s Eclectic Thoughts on an editorial by Yoo, one of the memorandum authors, defending his views. See also Michael Froomkin’s Discourse.net, which quotes quite a bit of the text. Yoo’s editorial itself is at the LA Times site, which requires registration.
Commentary from Juan Cole, which includes a citation of the law against torture (US Code Title 18 Section 2340). The same, together with a reading of the first few pages of the memo (which define ‘torture’), can be found at Fairshot, which also gives a synopsis of Bin Laden’s 1998 fatwah (a kind of mirror-image of some of the more extreme proposals here for dealing with the Muslim world—wonderful how certain people, ostensibly poles apart, fit one another like hand & glove)
Walrus & Carpenter
Alfred Tenniel
and quotations from a American Muslim’s criticism of it (in brief: Bin Laden has neither the authority to issue a fatwah nor the requisite knowledge to issue correct pronouncements on the duties of Muslims).
Phillip Carter’s “Cooking Up Excuses With the Pentagon” cites some of the relevant law (see also his Intel Dump entry). Reading this, two entries at Punishment Theory by Kyron Huigens and Kim Ferzan, legal analysis from D. S. Finley, and Michael Froomkin’s comments mentioned earlier, has persuaded me that the authors of these memos are to the victims of torture roughly what the Walrus was to the Oysters.

LinkJune 14, 2004 in Current Affairs · Society